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A better way to care

20 June 05

The background to and principal changes in the Mental Health (Care and Treatment) (Scotland) Act 2003, which brings in some fundamental changes

by Alan Bayley

The Mental Health (Care and Treatment) (Scotland) Act 2003 will introduce sweeping changes to the law relating to the compulsory treatment of persons with mental disorder. The Act was initially scheduled to come into force in April this year, but recent indications from the Executive suggest that implementation is now likely to be in October.

The new Act is the first significant review of mental health law in Scotland since the Mental Health (Scotland) Acts of 1960 and 1984. Indeed the 1984 Act was not extensively debated in Parliament, and many of the provisions in that Act can be traced back to proposals made in the 1950s. In many ways, the new Act can be seen as the first major philosophical review of Scots law on mental health for over 40 years.

This article aims to give practitioners a brief guide to the main provisions of the Act in so far as they relate to the compulsory detention and treatment of persons with a mental disorder who have not been convicted of a criminal offence. The Act also gives detailed provisions for dealing with convicted persons with a mental disorder, but that is beyond the scope of this article.

The new civil framework: “principles”

The Scottish Executive in its report New Directions: Report on the review of the Mental Health (Scotland) Act 1984 (SE/2001/56) recommended that “principles” should be fundamental the new Act: “In our discussions and consultation, we have found widespread acceptance that principles should underpin mental health law, and broad agreement as to the nature of these principles” (chapter 3, paragraph 5).

The principles are now enshrined in section 1 of the new Act. The approach will be familiar to practitioners who use the Adults with Incapacity (Scotland) Act 2000 where similar provisions apply. Any person using the provisions of the 2003 Act (including decisions to take no action or to discharge from the Act), must take account of the principles, which have regard to –

(a)    present and past wishes and feelings of the patient;

(b)    views of certain specified persons;

(c)    the importance of the patient participating as fully as possible;

(d)    the importance of providing information and support to the patient;

(e)    the range of options available in any case;

(f)    the importance of providing maximum benefit to the patient;

(g)    non-discrimination – patients to be treated no less favourably than non-patients (unless justified in the circumstances);

(h)    respect for diversity – the patient’s abilities, background and characteristics, including, without prejudice to that generality, the patient’s age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.

Any person using the provisions of the Act must also consider the welfare of any child under the age of 18 with a mental disorder as paramount (section 2), and must respect equal opportunities legislation (section 3).

The Mental Health Tribunal

One of the main changes that practitioners will encounter is the introduction of the new Mental Health Tribunal. The tribunal, broadly speaking, replaces the present role of the sheriff in mental health hearings. It seems to be desirable to move hearings relating to long-term detention and conditions for community residence to a tribunal, rather than dealing with them in a forum which could be seen to “criminalise” patients. In New Directions the Scottish Executive found after consultation that: “The general impression gained from the interviews was that many patients find the prospect of attending court to be an intimidating one and are too ill to take part” (annex 7, paragraph 31).

However, some caution is required. Similar tribunals have operated in England and Wales for some time, and their operation has not been entirely without problems. It is understood that proceedings have often been protracted, and very contentious. It is to be hoped that the new Scots system ensures a fair, but speedy resolution to cases.

Schedule 2 to the Act sets out how the new tribunals are to be composed. Each tribunal will be made up of three members:

  • a legal member;
  • a medical member (with qualifications, training and experience in the diagnosis and treatment of mental disorder); and
  • a general member (with appropriate qualifications, training, skills and experience).

Mental disorder: a definition

To fall within the scope of the Act, a person must have a “mental disorder”. This is defined in section 328 as including:

  • Mental illness – this covers psychiatric disorders such as schizophrenia, and also disorders of mood. It also covers dementia and disorders resulting from brain injury.
  • Learning disability – this covers people with autistic disorders and replaces terms like “mental handicap” and “mental impairment”.
  • Personality disorder – the term includes disorders classified as paranoid, schizoid, dissocial, emotionally unstable, histrionic, obsessive-compulsive etc.
The inclusion of the last category – “personality disorder” – may be seen as controversial. About 10% of the general population has a personality disorder, and the extent to which these disorders can be treated remains a matter of professional debate. Professor JJ McManus and Dr Lindsay Thomson in Mental Health and Scots Law in Practice comment:

“The term remains controversial and can be viewed as vague and pejorative... There is not a specific treatment for personality disorder but clinicians may attempt to treat individual components of the disorder, for example by the use of anger management in dissocial personality disorder. Such treatments are dependent on the willingness of an individual to co-operate and will be prolonged.”

The compulsory treatment provisions

1. Emergency detention 

Section 36 of the Act states that a doctor has power to grant an emergency detention certificate requiring the patient to be detained in hospital for up to 72 hours. This is to determine what medical treatment is to be provided for the patient.

The Act sets out detailed rules for this but broadly speaking, the criteria are that the doctor must be satisfied that the patient has a mental disorder; that it is necessary as a matter of urgency to detain the patient in hospital; and there is significant risk to either the patient or any other person.

2. Short term detention

Section 44 allows an “approved medical practitioner” (i.e. a psychiatrist) to grant a short term detention certificate ordering compulsory detention in hospital for up to 28 days. Again there are detailed rules set out in the Act, but generally the patient must have a mental disorder; it must be necessary to detain the person to assess or give medical treatment; and there must be risk to the patient or a third party. There is a right to apply to the tribunal for revocation of a short term detention certificate.

3. Compulsory treatment orders

Part 7 of the Act allows for compulsory treatment orders (“CTOs”) to be imposed on a patient. This part of the Act represents a considerable departure from the existing system for long-term treatment of those with mental disorders. The provisions of this part are detailed and will require careful consideration by all users of the new regime. The remainder of this article attempts to summarise some of the main elements of the new system.

The application (section 57)

Under section 57, it is provided that the application for a CTO is to be made by a mental health officer (“MHO”). The MHO will generally be a suitably qualified social worker. Two medical practitioners require to carry out examinations. Generally two “approved medical practitioners” (i.e. psychiatrists) are required, although the patient’s GP can provide one of the reports.

The medical practitioners require to be satisfied that:

  • the patient has a mental disorder;
  • medical treatment would be likely to prevent the mental disorder worsening or to alleviate any of the symptoms, or effects, of the disorder;
  • without treatment there is significant risk to the patient or a third party;
  • because of the disorder the patient’s ability to make decisions about the provision of such medical treatment is significantly impaired;
  • the CTO is necessary.

The proposed care plan (section 62)

Under sections 61 and 62 the MHO requires to prepare a report and proposed care plan in respect of the patient. In preparing the proposed care plan there are duties to consult with a range of care professionals and the doctors who prepared the section 57 reports. Amongst other things the plan is to cover:

  • the needs of the patient;
  • the medical treatment that it is proposed be given;
  • the care services which it is proposed that the patient is provided with;
  • the measures under section 66(1) (see below) which it is proposed the CTO should authorise, with full details of how those measures are to be provided;
  • the objectives of the treatment, the services and the measures that are recommended.

The application (section 63)

The application is then made by the MHO to the new tribunal. The documents to be lodged with the application are the doctors’ reports, the report prepared under section 61 and the proposed care plan prepared under section 62.

Powers of the tribunal (section 64)

Under section 64 the tribunal must afford a wide variety of persons the opportunity of making representations (orally or in writing) and of leading or producing evidence. There are 10 categories of person who have this right and the list includes the patient; the patient’s named person; any guardian of the patient; and the welfare attorney of the patient. Commendably the patient’s primary carer is also included in the list.

Compulsory treatment orders are to be made by the new tribunal. Like the sheriff under the existing system, the tribunal has the power to order long-term detention in hospital. The most radical part of the Act relates the orders which the tribunal may make. These are listed in section 66(1) and include:

  • authorising the detention of the patient in a specified hospital;
  • the giving to the patient of medical treatment;
  • the imposition of a requirement on the patient to attend on specified dates or at specified intervals at specified places either to receive medical treatment or community care or other relevant services;
  • the imposition of a requirement on the patient to reside at a specified place;
  • requirements to allow certain persons (e.g. the MHO, doctors, care professionals) to visit the patient;
  • the imposition of duties on the patient to advise on proposed changes of address.
It will be noted that the orders are not restricted to treatment in hospital. This reflects a change in clinical (and probably political) thinking about the most appropriate way to treat people with a mental disorder. In New Directions the Scottish Executive commented: “trends suggest that fewer people are being detained in hospital for lengthy periods, but there are, and may well continue to be, a rising number of people who live in the community most of the time, but may require compulsory measures of care in crisis situations. This pattern has a number of implications for mental health law... The possibility of treating people, even when acutely unwell, in the community, raises the issue of whether the link between compulsory care and detention in hospital is still appropriate.”

The new Act does indeed break that link. The new community-based CTOs recognise that long-term detention in hospital may not be the best way of treating and managing some patients.

Review of CTOs (Chapter 4)

The initial CTO is to be for a period of six months and is thereafter capable of being extended by the patient’s responsible medical officer for prescribed periods. The CTO must be reviewed by the tribunal every two years, or if the responsible medical officer recommends any variations to care or treatment of the patient.

If the responsible medical officer is not satisfied that the criteria required under the Act for the CTO still apply, then he shall make a determination revoking the CTO.

Appropriate care

The Act represents a radical change to Scots law concerning the compulsory treatment of those with mental disorders. The move towards hearings before a tribunal rather than the sheriff court will, it is hoped, remove some of the perceived stigma under the current system. Compulsory treatment outwith hospital, whilst clearly a sensitive issue, is also to be welcomed. Current medical thinking is that compulsory treatment within hospital is not the most appropriate form of care for many patients.